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Clarification with DUI probation

Garden Grove, CA |December 23, 2010

From my understanding, it is unlawful for a person convicted of a 1st time DUI to have any alcohol in their blood while driving during the probationary period. Not even .01% correct? After the probationary period, I was told that it was still unlawful since a person already has a 1st time DUI, its more likely that the person can get a 2nd DUI even if they are below the limit. I hear that 70-80% of 1st time offenders get a 2nd DUI partly because of these two things.

You are correct that while on probation you would be in violation of probation for driving with a 0.01% or higher blood alcohol level. While on probation, it is a Zero Tolerance standard. Also, more recently, the DMV has been empowered to suspend one's license for 12 months if you are caught driving with a blood alcohol of 0.01% or higher while on probation.

The probation violation would be addressed in court with a judge. You have a right to an attorney, and the right to a probation violation hearing. At the hearing, it would have to be proven by a preponderance of the evidence - not beyond a reasonable doubt, since you are on probation - and by a judge, not a jury. The court could then sentence you up to the maximum of 6 months in jail. However, it is unlikely that you would get anything near that. Most likely, you would be ordered to perform community service, go to AA's, etc. However, some jurisdictions may impose jail time.

The DMV is a separate issue. The DMV relies on a preponderance of the evidence standard, and would suspend your license for 12 months if it can be proven that you drove with a 0.01% or higher blood alcohol while on probation for a DUI. There are no exceptions to the 12 month suspension if the DMV does suspend. In other words, no restricted license. It is a 12 month hard suspension. It is important to make sure you request a hearing WITHIN 10 DAYS in order to preserve your right to a DMV hearing. If you do not, it is deemed waived.

Although it may not seem like much, driving with a 0.01% while on probation for a DUI has very serious ramifications. I highly recommend that you contact a lawyer specializing in this area as soon as possible, and to contact the DMV to preserve your right to a hearing within 10 days of the event.

In regards to getting a 2nd DUI with a blood alcohol level over 0.01% but less than 0.08%, it is possible. One can always be charged for driving under the influence of alcohol, regardless of the level, if it can be shown to adversely effect ones driving. Most DA's offices do get a bit more aggressive on filing if an individual has prior convictions. In this day and age, it is not all that uncommon to see 0.06% and 0.07% BAC's filed. This can happen even if one does not have priors, but is less likely.

You are correct that while on probation you would be in violation of probation for driving with a 0.01% or higher blood alcohol level. While on probation, it is a Zero Tolerance standard. Also, more recently, the DMV has been empowered to suspend one's license for 12 months if you are caught driving with a blood alcohol of 0.01% or higher while on probation.

The probation violation would be addressed in court with a judge. You have a right to an attorney, and the right to a probation violation hearing. At the hearing, it would have to be proven by a preponderance of the evidence - not beyond a reasonable doubt, since you are on probation - and by a judge, not a jury. The court could then sentence you up to the maximum of 6 months in jail. However, it is unlikely that you would get anything near that. Most likely, you would be ordered to perform community service, go to AA's, etc. However, some jurisdictions may impose jail time.

The DMV is a separate issue. The DMV relies on a preponderance of the evidence standard, and would suspend your license for 12 months if it can be proven that you drove with a 0.01% or higher blood alcohol while on probation for a DUI. There are no exceptions to the 12 month suspension if the DMV does suspend. In other words, no restricted license. It is a 12 month hard suspension. It is important to make sure you request a hearing WITHIN 10 DAYS in order to preserve your right to a DMV hearing. If you do not, it is deemed waived.

Although it may not seem like much, driving with a 0.01% while on probation for a DUI has very serious ramifications. I highly recommend that you contact a lawyer specializing in this area as soon as possible, and to contact the DMV to preserve your right to a hearing within 10 days of the event.

In regards to getting a 2nd DUI with a blood alcohol level over 0.01% but less than 0.08%, it is possible. One can always be charged for driving under the influence of alcohol, regardless of the level, if it can be shown to adversely effect ones driving. Most DA's offices do get a bit more aggressive on filing if an individual has prior convictions. In this day and age, it is not all that uncommon to see 0.06% and 0.07% BAC's filed. This can happen even if one does not have priors, but is less likely.

You are correct that while on probation you would be in violation of probation for driving with a 0.01% or higher blood alcohol level. While on probation, it is a Zero Tolerance standard. Also, more recently, the DMV has been empowered to suspend one's license for 12 months if you are caught driving with a blood alcohol of 0.01% or higher while on probation.

The probation violation would be addressed in court with a judge. You have a right to an attorney, and the right to a probation violation hearing. At the hearing, it would have to be proven by a preponderance of the evidence - not beyond a reasonable doubt, since you are on probation - and by a judge, not a jury. The court could then sentence you up to the maximum of 6 months in jail. However, it is unlikely that you would get anything near that. Most likely, you would be ordered to perform community service, go to AA's, etc. However, some jurisdictions may impose jail time.

The DMV is a separate issue. The DMV relies on a preponderance of the evidence standard, and would suspend your license for 12 months if it can be proven that you drove with a 0.01% or higher blood alcohol while on probation for a DUI. There are no exceptions to the 12 month suspension if the DMV does suspend. In other words, no restricted license. It is a 12 month hard suspension. It is important to make sure you request a hearing WITHIN 10 DAYS in order to preserve your right to a DMV hearing. If you do not, it is deemed waived.

Although it may not seem like much, driving with a 0.01% while on probation for a DUI has very serious ramifications. I highly recommend that you contact a lawyer specializing in this area as soon as possible, and to contact the DMV to preserve your right to a hearing within 10 days of the event.

In regards to getting a 2nd DUI with a blood alcohol level over 0.01% but less than 0.08%, it is possible. One can always be charged for driving under the influence of alcohol, regardless of the level, if it can be shown to adversely effect ones driving. Most DA's offices do get a bit more aggressive on filing if an individual has prior convictions. In this day and age, it is not all that uncommon to see 0.06% and 0.07% BAC's filed. This can happen even if one does not have priors, but is less likely.

You are correct that while on probation you would be in violation of probation for driving with a 0.01% or higher blood alcohol level. While on probation, it is a Zero Tolerance standard. Also, more recently, the DMV has been empowered to suspend one's license for 12 months if you are caught driving with a blood alcohol of 0.01% or higher while on probation.

The probation violation would be addressed in court with a judge. You have a right to an attorney, and the right to a probation violation hearing. At the hearing, it would have to be proven by a preponderance of the evidence - not beyond a reasonable doubt, since you are on probation - and by a judge, not a jury. The court could then sentence you up to the maximum of 6 months in jail. However, it is unlikely that you would get anything near that. Most likely, you would be ordered to perform community service, go to AA's, etc. However, some jurisdictions may impose jail time.

The DMV is a separate issue. The DMV relies on a preponderance of the evidence standard, and would suspend your license for 12 months if it can be proven that you drove with a 0.01% or higher blood alcohol while on probation for a DUI. There are no exceptions to the 12 month suspension if the DMV does suspend. In other words, no restricted license. It is a 12 month hard suspension. It is important to make sure you request a hearing WITHIN 10 DAYS in order to preserve your right to a DMV hearing. If you do not, it is deemed waived.

Although it may not seem like much, driving with a 0.01% while on probation for a DUI has very serious ramifications. I highly recommend that you contact a lawyer specializing in this area as soon as possible, and to contact the DMV to preserve your right to a hearing within 10 days of the event.

In regards to getting a 2nd DUI with a blood alcohol level over 0.01% but less than 0.08%, it is possible. One can always be charged for driving under the influence of alcohol, regardless of the level, if it can be shown to adversely effect ones driving. Most DA's offices do get a bit more aggressive on filing if an individual has prior convictions. In this day and age, it is not all that uncommon to see 0.06% and 0.07% BAC's filed. This can happen even if one does not have priors, but is less likely.

You are correct that while on probation you would be in violation of probation for driving with a 0.01% or higher blood alcohol level. While on probation, it is a Zero Tolerance standard. Also, more recently, the DMV has been empowered to suspend one's license for 12 months if you are caught driving with a blood alcohol of 0.01% or higher while on probation.

The probation violation would be addressed in court with a judge. You have a right to an attorney, and the right to a probation violation hearing. At the hearing, it would have to be proven by a preponderance of the evidence - not beyond a reasonable doubt, since you are on probation - and by a judge, not a jury. The court could then sentence you up to the maximum of 6 months in jail. However, it is unlikely that you would get anything near that. Most likely, you would be ordered to perform community service, go to AA's, etc. However, some jurisdictions may impose jail time.

The DMV is a separate issue. The DMV relies on a preponderance of the evidence standard, and would suspend your license for 12 months if it can be proven that you drove with a 0.01% or higher blood alcohol while on probation for a DUI. There are no exceptions to the 12 month suspension if the DMV does suspend. In other words, no restricted license. It is a 12 month hard suspension. It is important to make sure you request a hearing WITHIN 10 DAYS in order to preserve your right to a DMV hearing. If you do not, it is deemed waived.

Although it may not seem like much, driving with a 0.01% while on probation for a DUI has very serious ramifications. I highly recommend that you contact a lawyer specializing in this area as soon as possible, and to contact the DMV to preserve your right to a hearing within 10 days of the event.

In regards to getting a 2nd DUI with a blood alcohol level over 0.01% but less than 0.08%, it is possible. One can always be charged for driving under the influence of alcohol, regardless of the level, if it can be shown to adversely effect ones driving. Most DA's offices do get a bit more aggressive on filing if an individual has prior convictions. In this day and age, it is not all that uncommon to see 0.06% and 0.07% BAC's filed. This can happen even if one does not have priors, but is less likely.

If you have a DUI these days you need to take things seriously and, of course, you need a qualified lawyer. The potential consequenses of a second offense, a felony DUI with injuries or a vehicular manslaughter are dire. Masking at risk behavior or giving your self permission to drive after drinking can lead to disaster. So, don't kid yourself if you have a DUI whether or not you are still on probation.

Having said that, of course, a competent and qualified criminal defense lawyer will attempt to defeat the probation violation and the new offense if you have one. She or he will investigate, turn over every stone and make every legal motion that might work to the client's benefit.

But, most -- if not all -- of us would much prefer that our cleints were successful on probation and did not get a new offense. Sometimes this means that the client needs to regard the first DUI as a wake up call and deal with some aspect of their life or routine that puts them at risk. We hope that they do because we have all seen too many clients come back with much more serious -- and sometimes tragic -- problems.

You heard correct regarding the .01% rule while you are on probation. This may be in the paperwork you should have received from the court upon conviction.

Once your probation is over, the .01% rule no longer applies.

However, you can be charged with a 2nd offense DUI if it happens within ten years from the date of offense on your first one, and the cop believes you are driving under the influence or at .08% or above. Many Cops are now arresting people when under .08, but that is typically when you are close to the limit.